Homosexual marriage and the Supreme Court

Unless you were spending yesterday at the beach, not paying attention to anything but the sun and the sand and the surf, you’ve heard of the two Supreme Court decisions concerning same-sex marriage, Hollingsworth v Perry, and United States v Windsor, the former dismissing the federal challenge to the California state Supreme Court’s ruling on Proposition 8, and the latter with the Defense of Marriage Act.

The rulings aren’t the complete victories for which either side hoped. In Hollingsworth, the majority dismissed the federal challenge to the state court’s rulings. The state Supreme Court invalidated part of the state’s own constitution, and said that same-sex marriage is a right in the Pyrite State. In Windsor, the majority — a different majority — held that the definition of marriage has always been something left up to the states, and the federal government really has no business trying to trump state authority on that matter,1 and that the federal government could not hold that a couple legally married in a state which recognizes their marriage are not married for federal purposes. Left undecided was DoMA’s provision that states which do not allow homosexual marriage do not have to recognize same-sex marriages performed in states which do allow such.

Your Editor wrote, five years ago:

I have one, and really only one, concern. I want churches protected from criminal and civil liability if they refuse to perform a same-sex marriage. Many of our friends on the left pooh-pooh the idea that churches could be compelled to perform such, under the First Amendment, but seem strangely reticent to be willing to enact more explicit protections for churches in the event that same-sex marriages become legal.

To me, it’s simple: it doesn’t take much imagination to guess what could happen if an interracial couple went to a church, and asked to be married, and the minister refused because his church does not believe in interracial marriages. That minister and his church would face being sued, because they had discriminated on race, and churches fit the definition of a public accommodation. Since we license ministers to perform marriages, they have a dual religious-state legal function.

Well sooner or later, a same-sex couple is going to present themselves to a Catholic priest, and ask for a nuptial Mass. The priest will have no choice but to refuse, and he, and his parish, and his diocese will all get sued. A Ninth Circuit Court of Appeals ruling which undid a discharge under the military’s “don’t ask, don’t tell” policy held that classifications based on sexual orientation would be examined under a higher level of scrutiny, Patterico explains it here. This could mean that discrimination based on sexual orientation might be held to the same standard as discrimination based on race.

In the event of legally recognized same-sex marriage, we need solid protection for churches.

I should have included protections for ordinary people, for acting within their consciences:

I told you so: the state penalizes a Methodist group because it will not accommodate same sex unions

Posted by  on 30 December 2008, 3:51 pm

I’ve said previously that my one, and only one, objection to legal same-sex marriage it would be used to try to force churches to act against their beliefs.

I have one, and really only one, concern. I want churches protected from criminal and civil liability if they refuse to perform a same-sex marriage. Many of our friends on the left pooh-pooh the idea that churches could be compelled to perform such, under the First Amendment, but seem strangely reticent to be willing to enact more explicit protections for churches in the event that same-sex marriages become legal.

To me, it’s simple: it doesn’t take much imagination to guess what could happen if an interracial couple went to a church, and asked to be married, and the minister refused because his church does not believe in interracial marriages. That minister and his church would face being sued, because they had discriminated on race, and churches fit the definition of a public accommodation. Since we license ministers to perform marriages, they have a dual religious-state legal function.

Well sooner or later, a same-sex couple is going to present themselves to a Catholic priest, and ask for a nuptial Mass. The priest will have no choice but to refuse, and he, and his parish, and his diocese will all get sued. A Ninth Circuit Court of Appeals ruling which undid a discharge under the military’s “don’t ask, don’t tell” policy held that classifications based on sexual orientation would be examined under a higher level of scrutiny, Patterico explains it here. This could mean that discrimination based on sexual orientation might be held to the same standard as discrimination based on race.

In the event of legally recognized same-sex marriage, we need solid protection for churches.

Our friends on the left — Aphrael being the notable exception — all pooh-poohed that concern, saying that the First Amendment would prohibit such a thing, said that addressing my concern was unnecessary, and a waste of time. Yet, somehow, they were rather reluctant to codify any protections addressing my concern, even though they claimed it was unnecessary, and would, therefore, be harmless to them.

More at the link, but the passage of time has proved me to have been right: homosexual activists have been pushing and pushing against people who do not wish to rent their facilities or cater or provide cakes or service or whatevers for same-sex marriage ceremonies.

This is going to get uglier.
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  1. Your Editor wonders if we will ever again see Justices Breyer, Ginsberg, Sotomayor and Kagan defer to state’s rights on any other issue.

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